by: Dr. Kevin Boully
Can tales of survival in extreme conditions inform your next jury trial?
Employment jurors are uniquely different from jurors in nearly every other case type. Each brings a level of expertise to jury service that jurors in other case types typically cannot: personal experiences as employees that they directly apply to the facts of the dispute. Some experiences (e.g. supervisory experience, past terminations, education level) are more influential than others.
Chart from Persuasion Strategies 2009 National Juror Survey, n=500.
Cognitive psychology shows us that past experiences help jurors create mental models of how interactions ought to occur – essentially generalized expectations for what should transpire in a given set of circumstances. Employment jurors are consistently displeased if an employer’s behavior, when dealing with an employee, violates their mental models of that interaction. A recent employee termination mock juror argued firmly against a defendant company whose conduct in the process of an employee termination failed to follow the steps of the process she had in mind. Her model, based on her own experience, was her template for ideal conduct and the standard by which she judged the defendant.
None of this is surprising, but when I recently finished reading a handful of books on survival and surviving extreme conditions, I got to thinking about how survival psychology applies to juror decision-making.
The survival psychology literature is replete with examples[1] and psychological jargon describing the characteristics of people who have survived extreme and extraordinary situations and physical and mental improbabilities – the lore of hikers lost and found, fallen mountain climbers returned to their base camps, and airline passengers thrust into catastrophe. The clear message? Survivors adapt and persevere by remaining flexible and being willing to revise their mental models as circumstances change. This allows them to avoid becoming stuck in a world of irrelevant expectations and perceptions that fail to match reality. In short, when reality fails to match the model, survivors alter the model and adjust rather than becoming frustrated and ineffectual actors in a counterfeit reality.
Employment jurors have mounds of mental models influencing their views of litigants in an employment dispute. Some are more capable of adjusting their models and accepting that their expectations cannot be appropriately applied to all situations. These jurors will be more open to hearing your side of the story, and more likely to think flexibly and openly about the context that influences difficult employment decisions.
Identify inflexible[2] jurors by considering a few characteristics in voir dire:
° Inflexible preferences for managing work-related tasks. When a project at work or a deadline is suddenly changed, how do you typically react? How many of you are frustrated by sudden shifts in your work?
° Low tolerance for spontaneity. Do you get a kick out of last minute vacations out of town? Why or why not?
° Preference for long-term goal-setting. When you think about your career, how far into the future do you like to plan?
° Low tolerance for ambiguity. How did it make you feel to come here this morning and not know how your day would end up? How does it feel if you go to work and aren’t clear what is expected of you that day?
° A work history of only a few long-term employers.
[1]Deep Survival by Laurence Gonzales, Surviving the Extremes by Kenneth Kamler and The Survivor’s Club by Ben Sherwood are filled with exceptional survival stories.
[2]See also www.emergenetics.com as a resource for how flexibility contributes to individual behaviors.
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